Court: Removing blacks from jury pool wasn’t discrimination

A Wisconsin prosecutor’s decision to strike the only two black people from a jury pool in a drug case involving a black defendant wasn’t racially motivated because they said they had had bad experiences with the police, a divided state appellate court ruled this week.

The Kenosha County jury convicted Malcolm Sanders of dealing heroin in 2017. He was sentenced to 12 years in prison.

According to court documents, the prosecutor during jury selection struck the only two black people from the jury pool after they both said police had racially profiled them. The prosecutor told the trial judge that she felt that based upon their experiences; they didn’t trust the police and would regard police witnesses with more skepticism than other witnesses. The court documents don’t identify the prosecutor.

Sanders argued on appeal that striking the two black people from the pool violated the equal protection clause in both the U.S. and Wisconsin constitutions. He maintained that making black people who have been racially profiled by police ineligible to serve on juries amounts to more discrimination.

The 2nd District Court of Appeals disagreed, ruling 2-1 that the prosecutor’s decision to strike the two jurors was “race-neutral.” All three judges on the court are white.

Judge Mark Gundrum wrote for the majority that the prosecutor gave the trial judge a legitimate reason for the strikes. Gundrum also noted that she also struck two other jurors who acknowledged some level of distrust of police.

“Bias against law enforcement and/or the criminal justice system more generally is a legitimate and very understandable reason for the State, when given the opportunity, to strike a potential juror,” Gundrum wrote. District 2 Chief Judge Lisa Neubauer joined Gundrum in the majority.

Judge Paul Reilly was the lone dissenter. He wrote that the trial judge had to choose between accepting the prosecutor’s explanation or calling her a liar.

“The ‘race-neutral’ reason offered by the prosecutor is per se discriminatory and requiring our trial judges to call out prosecutors as liars to defeat these easily stated ‘race-neutral’ reasons is unworkable,” he wrote.

He went on to say that keeping blacks off juries because they’ve been unfairly treated is itself discrimination.

“Our history of racism against blacks and our recent judicial sanctioning of racial profiling has infected our justice system with a cancer that is now metastasizing into the constitutional right of the jury,” Reilly wrote.